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Court considers what child porn viewer owes victim

Associated Press

January 22, 2014

This Dec. 19 photo shows a view of the Supreme Court from near the top of the Capitol Dome on Capitol Hill, in Washington, D.C. - Associated Press

WASHINGTON – Supreme Court justices expressed compassion for a woman raped as a child as they struggled with how much money should be paid to her by one man convicted of possessing pornographic images of the abuse that have spread among thousands of online viewers.

The woman known as “Amy” was in the courtroom, her legal team said, for arguments in which the justices talked frankly about the abuse she and other victims of child pornography suffer from those who look at the pictures.

“The woman has undergone serious psychiatric harm because of her knowledge that there are thousands of people out there viewing her rape,” Justice Antonin Scalia said early in the hourlong arguments.

Yet the court seemed to wrestle with determining how much restitution for counseling, lost income and legal fees any single defendant should be asked to pay.

The justices heard an appeal from Doyle Randall Paroline, who was held liable by a federal appeals court for the nearly $3.4 million judgment associated with the ongoing Internet trade and viewing of images of Amy being raped by her uncle when she was 8 and 9 years old.

Paroline had hundreds of images of children on his computer when he was arrested; two were of Amy.

“He’s guilty of the crime, but to sock him with all of her psychiatric costs and everything else because he had two pictures of her. Congress couldn’t have intended that,” Scalia said in an exchange with Amy’s lawyer, Paul Cassell.

Several other justices also said they were troubled by the apparent lack of a link between the crime and the restitution order, even as Cassell sought to explain to the court the number of images possessed by Paroline might be relevant in determining jail time or a fine, but not to the harm inflicted on Amy, now in her 20s.

When Congress wrote the 1994 law giving victims of child pornography and other sexual crimes the right to collect restitution from people convicted of the crimes, it meant to make it easy for the victim to collect, Cassell said.

The idea, he said, is that courts could hold everyone responsible for the total amount. Most people, including Paroline, could afford only a small portion, but a few wealthier defendants might be able to pay the bulk of the judgment.

“We’re not asking for double recovery. Amy simply wants to be made whole. She wants to recover her psychological counseling costs and her losses,” Cassell said.

She has so far received more than $1.75 million, Cassell said. Of that total, $1.2 million came from one man, Arthur Staples, a Virginia sheriff’s deputy who had more than $2 million in retirement savings.

If the justices weren’t entirely persuaded by Cassell’s argument, they also had problems with the solutions put forth by Paroline’s lawyer, Stanley Schneider, and Justice Department lawyer Michael Dreeben.

Schneider said that there is no relationship between Paroline’s conduct and Amy’s losses, so that there should be no award of restitution.

Justice Elena Kagan said Schneider’s position could lead to odd results. If only one person were convicted of viewing the images, he might be responsible for all the damages, Kagan said. “But if a thousand people viewed the pornography and the harm was that much greater, nobody would be on the hook for restitution. How could that possibly make any sense?” she said.

The Obama administration takes a middle ground, saying victims should be awarded some money from each defendant but not the entire amount. Trial judges should make the determination, Dreeben said.

But under questioning, Dreeben could not give the court a single formula for judges to apply. “In restitution cases, reasonable estimates are the order of the day,” he said.

Justice Stephen Breyer suggested letting the U.S. Sentencing Commission recommend an answer. Dreeben pointed out that the commission already has proposed that Congress make the restitution issue clearer.

Amy’s lawyers estimate that tens of thousands of people worldwide have downloaded and viewed Amy’s images. As a victim of a sex crime, her identity is shielded in court records.

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline’s, included images of the rapes, for which Amy’s uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy. Restitution has been awarded in just under 200 cases involving images of Amy.